IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

DATED THIS THE 24^TH DAY OF OCTOBER 2016

Present:-    Smt. G. Vasanthakumari, President

                             Adv. Ravisusha, Member

                             Adv. M. Praveen Kumar, Member

           CC.No.297/2011

Shameena.A                                               :                  Complainant

Shifi Manzil,

Vikas Nagar 107,

T.K.M.C. P.O, Kollam

[By Adv.Anoob.K.Basheer, Kollam & Praveen Ashok]

V/S

1. The Director,                          :                  Opposite Parties

N.S Memorial Institute of Medical Science,

[By Adv.Kallada.M.Balachandran]

2. Dr. Ibrahim Rawther,

N.S Memorial Institute of Medical Science,

Palathara, Kollam

[By Adv.Manaccadu.Badarudeen Koya, Kollam]

3. The Secretary (Additional Opposite Party)

N.S Memorial Institute of Medical Science,

Kollam (Impleaded as per order on IA 285/12 dated 28.11.2012)

[By Adv.Kallada.M.Balachandran]

SRI.M.PRAVEEN KUMAR, MEMBER

Complainant’s case is that on 10.06.2011 he had approached 2^nd opposite party for treating an accidental glass inflicted injury sustained to her lower right forearm. The  second  opposite  party  attended  to and treated the complainant,

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sutured her   wound  and advised  her to  come back on 16.06.2011 for further treatment.  Subsequently on 16.06.2011 the complainant approached 2^nd opposite party as advised and got her switches removed.  At the time itself the complainant informed 2^nd opposite party of the uneasiness and numbness in her thumb.  However 2^nd opposite party informed the complainant that it will take atleast a week’s time for the normal functioning of her forearm and thumb.  The complainant on believing 2^nd opposite parties medical advice and assurances went back.  However from that day itself the complainant’s pain and uneasiness got aggravated.  Subsequently she noticed numbness in her thump as well as middle fingers.  Due to unbearable pain, the complainant was constrained to approach 2^nd opposite party again for further medical advice, but at that time the reaction of opposite parties towards the complainant was rash and unprofessional.  The complainant approached metro scan laboratory, Karunagappally for a scan report.  As per the scan report there was “no response obtained from the right median nerves stimulation”.  Shocked by this the complainant immediately approached the opposite parties.  At that time also no proper treatment and service was provided by the opposite parties.  On 30.06.2011 subsequently the complainant was constrained to approach Department of Orthopedic, KIMS Hospital, Thiruvananthapuram.  Accordingly the complainant was admitted in the said Hospital and was under the treatment of Dr.  Manoj Haridas.  On further thorough examination the doctors at KIMS advised for an immediate surgery on complainant’s right arm.  Accordingly the surgery was conducted on 16.07.2011.  Doctors then had advised the complainant that she will have to undergo one more surgery to rectify the entire defect caused to the forearm due to the negligence and dereliction of duty of 2^nd opposite party in treating the complainant.  Still the complainant is under treatment due to the opposite parties above negligent and unethical attitude.  The complainant comes from a family with a low income and she is struggling to meet the expenses in connection with her treatment of her

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forearm.  Similarly the complainant who was doing Bsc. Computer Science Courses at Fathima Matha National College, Kollam was forced to discontinue her studies because of the above mentioned incident and the same has negatively affected her future prospects.  Similarly the complainant was supposed to appear for the LDC Exam conducted by Kerala Public Service Commission on 13.08.2011.  However due to the defunct forearm she could not attend the same thereby causing loss of job prospects and mental agony to the complainant.  This entire incident was caused due to the sole negligence on the part of the 2^nd Counter petitioner.  It is a clear case of deficiency in service on the part of the counter petitioners.  For the litigation sake the complainant is claiming Rs.15,00000/-(Rupees Fifteen Lakh only) towards compensation.  Which includes mental agony, expenses, loss of future prospects etc.  The opposite parties are jointly and severally liable to compensate the complainant.  The complainant had sent a registered Lawyers notice to the opposite parties.  Even after receiving the same instead of effecting compensation they have send a reply notice raising frivolous and untenable arguments.  Hence, the complainant most respectfully prayed that this Hon’ble Forum may be pleased to grant the following reliefs, directing the opposite parties to pay compensation of Rs.15,00000/-(Rupees Fifteen Lakh only) to the complainant , directing the opposite parties to pay the costs of this complaint to the complainants.

1^st opposite party filed version contending that the complainant came for treatment on 10.06.2011 in the causality of the hospital with an incised wound of 5×1×0.5cm in the middle of the Right forearm.  On detailed examination by the Casualty Medical Officer, no evidence of tender injury or weakness of wrist was found.  The wound was sutured and given injection Tetanus Toxoid, Antibiotics and anti inflammatory and geries and other supportive.  She was advised to attend the hospital for dressing of the wound on the next day.  On 11.06.2011, she came to the casualty and the casualty medical officer examined the wound and at that

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time the complainant had not made any complaint regarding pain or discomfort in the sutured wound.  She was advised to further dressing of the wound in any local hospital and advised to attend the casualty of the 1^st opposite party on 16.06.2011.  On 16.06.2011 complainant came to the casualty and on examination it is found that the wound was healed well and accordingly stitches were removed.  At that time also complainant made no complaint of pain or any type of discomfort to the wound or to his hand or thumb.  On making a further dressing on the healed wound in order to protect it dust on dirt on direct from outside, she was advised to go home.  Complainant noticed numbness in her thump as well as middle finger is false.  After 16.06.2011, complainant never attended the 1^st opposite party hospital with any complaints or for treatment and there was no reasons for the doctors of the 1^st opposite party for reacting towards her rashly and unprofessionally.  The casualty medical officer of the first opposite party had treated the complainant with much care and caution and proper care and attention was given to her.  There was no negligence on the part of the above doctor in the matter of treatment given to the complainant.  There is absolutely no deficiency of service on the part of the 1^st opposite party in the above matter.  The first opposite party is not liable to pay any amount as compensation to the complainant.   Hence dismiss the complaint with cost of the 1^st opposite party.

2^nd opposite party filed version contending that on 10.06.2011, the complainant approached 2^nd opposite party for treating an accidental glass inflicted injury sustained to her lower right forearm is utter false.  The 2^nd opposite party is unknown to the complainant and she never approached the 2^nd opposite party for treating an accidental glass inflicted injury sustained to her lower forearm. 2^nd opposite party never attended and treated the complainant.  At the time of removal of stitches the complainant informed 2^nd opposite party of the uneasiness and numbness in her thumb, and the 2^nd opposite party informed the complainant that take a week time for normal functioning of her forearm  and thumb are also utter

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false. 2^nd opposite party is unaware about the injury as alleged and scan report.  The complainant not approached the 2^nd opposite party with scan report.  The 2^nd opposite party also unaware about the treatment and surgery conducted in KIMS Hospital, Thiruvananthapuram.  2^nd opposite party is unaware about the complainant status, financial position, educational qualification, inability to attend the PSC examination and loss of job.  2^nd opposite party had been working as a chief physician in the 1^st opposite party’s Hospital.  2^nd opposite party is not a surgeon and there was no reason to approach him for treatment of alleged glass inflicted injury.  The 2^nd opposite party worked as Casualty Medical Officer in the 1^st opposite party’s hospital at any point of time. The complainant had sent registered notice to the 2^nd opposite party and this opposite parties has sent a reply notice by registered post stating the real facts to the complainant also.  Hence 2^nd opposite party prays to dismiss the complaint with cost of 1^st opposite party.

The points that would arise for consideration are:-

(1) Whether there is any deficiency in service on the part of opposite parties?

(2)  Reliefs and costs?

The evidence in this case consists of the oral testimony of PW1 and PW2, DW1 and DW2 and documentary evidence Ext P1 to P9 and D1,D2.

The Points:- Complainant’s case is that complainant had approached the 2^nd opposite party for treating a glass inflicted injury sustained to her lower right forearm, there the 2^nd opposite party treated the complainant and sutured her wound and advised her to come back and on 16-06-2011 2^nd opposite party removed her stitches, at that time complainant informed about the uneasiness and numbness in her thumb.  But 2^nd opposite party didn’t take any steps and even care to listen her grievances.  And she was forced to resort to better treatment. Later complainant taken scan and its report stated that “no response obtained from the right median nerves stimulation”.  And further examination Doctors at KIMS Hospital advised an immediate surgery on complainant’s right arm and surgery

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conducted on 16-07-2011.  And then the doctors  had advised the complainant that she will have to undergone one more surgery to rectify the entire defect caused to the forearm due to the negligence and dereliction of duty of 2^nd opposite party in treating the complainant.  Still complainant is under treatment due to the opposite party’s negligent and unethical attitude.

The crucial question arises for consideration is whether there is any willful negligence on the part of opposite parties while treating the complainant.

We have heard learned counsel for both the parties.  The counsel for the complainant argued that the subsequent surgeries were needed and conducted due to the negligent and dereliction of duty of 2^nd opposite party treating doctor.  Opposite parties have committed gross negligence on two manners (a) fail to detect the nature of injury (b) failure to refer for better treatment on time.

Learned counsel for 1^st and 3^rd opposite parties argued that on 10.06.2011 the complainant came to the casualty of the third opposite party hospital with an incised wound 5x1x0.5cm. in the middle right forearm.  The casualty medical officer of the 3^rd opposite party cleaned the injury wounds and it was sutured and given injection tetanus toxoid, antibiotics and anti inflammatory and other supportive medicines. She was advised to attend the hospital for examination and dressing of the wound on the next day ie. 11.06.2011.  On that day she came to the casualty of 3^rd opposite party at 9.05 am and the casualty medical officer attended her injury.  There was no complaint regarding pain or any discomfort on account of the injury and she was advised to further dressing of the wound in any of the local hospitals and directed to attend third opposite party hospital on 16.06.2011 for removing the stitches.  On 16.06.2011 complainant came to the hospital and there was no complaints regarding pain or discomfort to the wound.  Stitches were removed and dressing was made in the healed wound in order to protect it from dust and dirt from outside.  There was absolutely no negligence on the part of the 1^st and 3^rd opposite parties in providing proper treatment to the complainant.

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Learned counsel for the 2^nd opposite party argued that complainant never approached him for treatment at any point of time and not yet given any medical advise to the complainant.

We have perused the statement of expert witness PW2, Dr. Manoj Haridas, Hand Surgeon, KIMS hospital, Thiruvananthapuram.  He would swear before the forum that “tcmKn Fsâ hospital  h¶t¸mÄ aq¶v hncepIÄ¡v achn¸pw XÅ hncen³ _elo\Xbpw DÅXmbn ImWs¸«p. Cu AhØ median nerve , cut Bb  AhØbn BWv ImWs¸«Xv. Median nerve cut Bbm FXm\pw Znhk§Ä¡Iw Xp¶nt¨À¡Ww. ” . He again deposed that  “km[mcW hospital  I­p]nSn¡phm³ ]änbnà F¦n better treatment \v advice sN¿pIbmWv”. He categorically stated that the treating doctor who conducted the suturing did not identify the cut injury of patient’s median nerve and treating doctor simply cleaned the wound and dressed it.

 It shows the negligence of the doctor who conducted the treatment / suturing.

Another question arise  for consideration is whether 2^nd opposite party conducted suturing/ treatment to the complainant.

          Learned counsel for the 2^nd opposite party argued that 2nd opposite party never treated the patient and he was in abroad at that time.  2^nd opposite party examined as DW2 and he would swear before the forum that “ 10/06/2011  tIcf¯n D­v. 16/06/2011 epw tIcf¯n D­v. Cu Imebfhn NS hospital  Â work sNbvXpsIm­ncn¶p. Hospital  tcmKn¡v sImSp¡p¶ Bill  NnInÕn¡p¶ Doctor sS t]cv tNÀ¡mdp­tÃm ? AsX ”. And also admitted that he was in abroad from 24-06-2011 for ten days.  Opposite party side produced case record which is marked as Ext D1.  We have perused the Ext D1 case sheet.  There is no name and signature of any  treating doctor.

          Learned counsel for the complainant argued that the 2^nd opposite party treated   the   complainant   on    10.06.2016    and   16.06.2016 he rely the Ext P1

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document.  In Ext P1 document, the patient name is Shameena (Complainant) and Doctor’s name is Ebrahim Rawther (opposite party 2).  Opposite parties admitted that complainant was treated their hospital on 10.06.16 and Ext.P1 document was issued from their hospital.

          At this juncture we are on the view that 2^nd opposite party treated the patient and didn’t exercise proper skill and  indicated that reasonable degree of care was not taken, which amount to gross negligence and deficiency in service on the part of opposite party 2.

The next question that falls for the consideration is the compensation which the respondents are liable to pay for their negligence and deficiency in service. It is settled law that the hospital is vicariously liable for the acts of its doctors side. Sarita Garg Vs National Heart Institute (2004(8) Supreme 58 similarly on V.Krishnakumar Vs. State of Tamilnadu and others- 2015  (C3) CPR 104(Sc) dated 1.07.2015 by Supreme Court.  By the same measure, it is not possible to absolve opposite party 3 (Hospital) from its liability. It is oblivious that there should be adequate compensation for the expenses already incurred the pain and suffering. Complainant side not adduced any evidence that the complainant is still under treatment/ not produced any disability certificate.

Medical Expenses                                      Amount               Supporting  evidence

Till 19.07.2016                                 42,243/-                  Ext- P4& P5

In the result, complaint is allowed in part.  Opposite party’s 2 and 3 are directed to pay Rs.1 lakh to the complainant as compensation and Rs. 3000/- as cost to the proceedings.  This order must be complied with within 30 days of date of receipt of this order.  Non compliance of this order the amount of  Rs. 1 lakh will carry penal interest at the rate of 12% per annum.

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Dated this the 24^th   day of October 2016.                                                                                                                              

  SMT.G.VASANTHAKUMARI:Sd/-

  SMT.RAVISUSHA:Sd/-

                                                                          SRI.M.PRAVEENKUMAR:Sd/-

                                                                     Forwarded/by Order

I N D E X

PW.1:- Shameena

PW.2:- Dr. Manoj Haridas

DW.1:-  Dr.K.Gopinathan

DW.2:- Dr. Ebrahim Rawther

Ext.P.1:- Bill dated 16.06.2011 of  N.S. Hospital, Kollam

Ext.P.2:- Metro scan report dated 28.06.2011

Ext.P.3:-Discharge summary from KIMS Hospital

Ext.P.4:- Bill from KIMS Hospital dated 19.07.2011

Ext.P.5:-Medical bills from KIMS Hospital

Ext.P.6:- Psc admission ticket

Ext.P.7:-Advocate notice dated 17.11.2011

Ext.P.8:-Advocate notice

Ext.P.9:-Reply notice

Ext.D.1:- Case record from N.S.Hospital

Ext.D.2:- Copy of  passport